Does Concealment = Shoplifting?

In most states, intent is the driving factor in determining whether shoplifting has occurred.

It is a common misbelief among shoplifters that an individual must exit the store with unpurchased merchandise before being civilly liable for statutory civil damages. It is also a common misbelief among those shoplifters that if the merchandise is not physically damaged, they would not be liable for civil damages.The second misbelief is addressed in another post, “No Damage Does Not Mean No Damages.”

This post takes a closer look at that first misconception. It is not intended to influence store policy or suggest a departure in the world of loss prevention from well-thought-out policies designed to both increase the likelihood of successful criminal prosecutions and protect retailers from frivolous civil claims and litigation from those committing acts of theft. This post also only addresses civil law and is not intended to describe the required legal elements for or the higher burden of proof that must be met to prove a criminal case for theft.

The most important factor behind whether an individual could be held civilly liable for trying to take unpurchased goods from a store is intent to deprive the store of the store’s product or the benefit, use or full retail/sales value of the item or items in question.

Many states define shoplifting or retail theft in terms of actions that would cause a person to reasonably believe that the actor intended to permanently deprive the merchant of the goods. Most states require that the merchant have probable cause (or, in the case of the Florida and Arkansas merchant detention statutes listed below, reasonable cause) to believe that an individual has committed an act of theft or is attempting to shoplift (with the requisite intent) before making a decision to detain the individual to determine if the merchant’s observation was correct.

Probable cause does not necessarily require observing an individual exit a store with unpurchased merchandise. For example, when a person opens a product’s container and consumes at least a portion of the contents within the store’s premises and fails to pay for the product, probable cause is easy to prove. However, depending on the law of the state, probable cause to detain and make inquiry can often be obtained by observing an individual conceal unpurchased merchandise inside the premises, or in some states, even by the activation of electronic article surveillance (EAS) regardless of whether the individual was observed concealing merchandise. We would not recommend accusing someone of theft merely because an EAS alarm has sounded, but the sounding of an EAS alarm might be a good basis for an inquiry. With the right touch of customer-centric diplomacy, EAS alarms may also serve as a way of keeping more assets from leaving a store without any accusations being made.

A majority of states have laws creating a nexus between concealment and intent. Some states have placed the presumption of intent from an act of concealment into their civil theft/civil recovery statutes; some have included it under the definition of shoplifting in their criminal theft statutes; some have included it in their merchant detention (also known as shopkeeper’s privilege) statutes; and others have developed the presumption through case law.

Alaska, for example, has written a presumption of intent into its civil theft statute. Included under the definition of shoplifting are situations where a person knowingly conceals unpurchased merchandise while still on the merchant’s premises.

Other states define shoplifting under their criminal statutes for theft and have presumptions of intent for certain acts, which include acts of concealment. New Jersey and Pennsylvania have a presumption that concealing unpurchased merchandise on or outside of the premises of a store shall create a prima facie presumption of an intention to deprive the store of the possession, use or benefit of such merchandise on the part of the person who concealed the merchandise. Prima facie means that something is sufficient to establish a fact or raise a presumption unless disproved or rebutted (Black’s Law Dictionary, 10th ed. 2014).

Some states have chosen to include a presumption of intent under the definition of shoplifting in their criminal theft statutes. In Arizona, any person who knowingly conceals unpurchased merchandise while inside the store shall be presumed to have the necessary culpable mental state that is required to be liable for shoplifting.

Delaware, Missouri, New York, Rhode Island and Washington have similar presumptions of intent included in their merchant detention statutes and are additional states that permit detainment upon the act of concealment.

Georgia’s merchant detention statute permits a presumption of intent to be inferred when there is suspicious behavior in general, stating that it is reasonable to think that a person is engaged in shoplifting when the person is conducting himself or behaving in such a manner as to cause a person of reasonable prudence to believe that he has or is committing the act of shoplifting.

Under Florida and Arkansas’s merchant detention statutes, a merchant may detain a person if the merchant has reasonable cause to believe that a theft has occurred. The statutes state that the activation of an antishoplifting or inventory control device constitutes reasonable cause for detention so long as notice is posted that antitheft security devices are being used in the store. Colorado, Tennessee, and Virginia also have similar statutory language in their merchant detention statutes.

Other states rely on or supplement the presumption of intent through case law. California and Louisiana are the only states that have statutes with language requiring (or seeming to require) the taking of unpurchased merchandise from a merchant’s premises in order to trigger statutory civil damages liability. However, case law in Louisiana specifically allows statutory civil damages liability even if the merchandise is not removed from the store’s premises. Therefore, for purposes of whether a request for statutory civil damages may be made in Louisiana, a detention may occur as soon as a person takes unpurchased merchandise without consent and with the intent to permanently deprive the merchant of the goods (Ourso v. Walmart Stores, Inc., 2008 WL 4899117,La App 1 Cir). This is also apparent through Louisiana’s merchant detention statute, which states that if proper notice has been posted, a detention can occur upon the activation of an electronic security device.

Similarly, an appellate court in Iowa has found that concealment of unpurchased items is material evidence of an individual’s “intent to deprive” element under Iowa Code Section 714.5, even if a person relinquished the unpurchased merchandise prior to exiting the store [(Govan v. State, 736 N.W.2d 267, *1 (Iowa App. June 13, 2007)]. In New York, an appellate court found that “the ‘taking’ element of a larceny is satisfied where the defendant ‘exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights’” [(People v. Zombo, 813 N.Y.S.2d 624, 626 (N.Y. App. Div. 4 2006)]. Therefore, in these types of scenarios, regardless of whether an individual has exited a store with unpurchased merchandise, the elements of larceny were considered satisfied, and an individual was allowed to be stopped as soon as concealment occurred.

In the majority of states, a person has committed the act of shoplifting and may be detained as soon as unpurchased merchandise is concealed. In many states, an individual may be stopped as soon as a security device alarm sounds, even if the individual was never observed concealing unpurchased merchandise. The purpose of a detention is to investigate whether the person was attempting to shoplift and/or to recover any unpurchased merchandise that the person might have concealed—if there is a question of whether they had intent or one of the store policy elements might not have been met.

In most states, if concealed merchandise is discovered, whether or not the person exited the store and whether or not the merchandise was recovered in salable condition, provided the wrongful intent was present, the retailer has the right to pursue a statutory civil damages claim. However, in order to reduce the likelihood of being sued, even if the claims could be successfully defended, retailers generally prefer to wait for an individual to exit or at least pass the last point of purchase before making an apprehension.

It is important for retailers to familiarize themselves with individual states’ criminal and civil laws and to coordinate with local asset protection staff and prosecutors to tailor its own store policies to help ensure greater success with prosecution. If a retailer is not planning to call the police and wishes to merely retain its merchandise or under special circumstances, such as when a person is a known repeat offender who has fled from the store in the past, the retailer may choose to apprehend an individual and protect its assets and personnel before the individual exits the store.

This article was originally published in 2009 and was updated February 26, 2018.

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I have been in the LP profession for over 30 years holding positions in nearly every capacity. The issues that we face is not the understanding of the law but rather the tolerance of the Retail industry and the interputation of law enforcement and district attorneys. First for our industry, the position of the executives and owners is side of caution and by extending the apprehension to past the last point of payment or exiting the facility you have a better chance for a successful prosecution and a sound defense in the case of a civil suit. Second many of the local arms of the law (PD and DA’s) will not touch or prosecute the cases without the extra element of leaving the property…

Based on the increased risk and safety issues I do wish the industry would move back to the law as it is written but realistically I do not see this happening anytime soon……

The other issue that you have is if the retailers draw the line where the actual law is, then they are leaving the interpretation up to its loss prevention (LP)personnel; if they’re wrong in the eyes of the courts, then it opens the retailer and the LP personnel up to costly litigation–something that retailers have long known can cost them more than the merchandise leaving.

A very useful article but I would respectfully suggest that in addition to following the recommendations contained therein a well written, detailed, concise and accurate written report of the incident which articulates the necessity for the use of force is also an essential element of the prosess.

Excellent article. As a retired police officer and prosecutor now in private loss prevention, I can tell you that NH has particularly direct statutes on both shoplifting and wilful concealment (now both part of the theft statutes), and one cannot infer intent by concealment and thus the two separate laws. In fact, the NH Supreme Court ruled that for shoplifting (theft) to occur, the defendant (or suspect) would have needed to leave the store’s premises, and ruled that a foyer is still consideredf to be on the premises (see State vs. Kimberly Thiel, 2010 NH Reports).
I would love to have intent infered by somone simply leaving the sales floor with merchandise or by-passing the registers, but that is not likely to happen is this state anytime soon.

I agree with each of the comments stated. To clarify, we are not suggesting a change in general policy by Loss Prevention Departments and pointed out that the law varies from state to state. Executives in Loss Prevention field need to set policies regarding theft apprehensions that 1) will protect the companies they work for from unnecesary civil litigation, 2)will provide the best chance for a successful defense of any such litigation, 3)provide the greatest liklihood of successful criminal prosecutions and 4)can be easily understood and implemented by staff.

I’ve had a couple of years experience with retail loss prevention, and today, I’ve seen a customer purchase several items from a shopping bag. Because of situations like these, I believe that the loss prevention agent team, or loss prevention door monitor should wait until at least the last point of sale before making an apprehension regardless to how favorable the laws may be in Georgia, or elsewhere.

As you say, the law is clear but retailer’s own internal policies go much much further for good reason. I consider such laws to be legal minimums, and policy to enhance protection and reduce liability. It is an easier case to make “beyond a reasonable doubt” when a subject who concealed passed the POS, regardless of the concealment laws on the books. Having worked in a state that allows arrest at the point of concealment I can tell you that we almost never made an apprehension inside the store. The rare exceptions were in cases of known, serial ORC operators with getaway cars waiting outside and only then when we were attempting a sting. It required several layers of review and approval through LP and Legal despite laws on the books which were clear cut.

Good article and a great reminder of the fact that retailers should strive to do more than meet the minimum requirements of the law. The reasons why retailers, despite concealment laws, continue to enforce policies on “Passing The Point Of Sale” should be clear to any competent LP professional: The reduction of reasonable doubt, protections against civil suits (even winnable ones are a drain on resources) and the potential for an unpleasant disturbance on the sales floor. In 16 years of working in retail LP, including some in Arizona where concealment is sufficient, the policies I was operating under have NEVER allowed for concealment-only stops. However, there was one incident in which action was taken prior to the subject exiting: the prior day the subject had exited with merchandise and when we attempted the stop, he brandished a weapon. We disengaged. When he was observed concealing merchandise on the following day, we alerted police and allowed them to make the stop inside the store prior to his exiting. The stop was perfectly legal, conducted by law enforcement, and indeed, the subject had both the merchandise and the weapon on his person when stopped. Legal or not, such stops should only be made after approval from higher up the chain.

In those states in which an EAS is activated and the alleged shoplifter is never seen concealing an unpurchased item and he is still can be detained, what if someone else frames him and he can’t prove it?

Talk about unjust. Regardless of what the law says, you cannot simply presume that placing goods out of view in and of itself equals intent to steal. That still leaves a great deal of reasonable doubt i.e. maybe the person didn’t have anywhere else to put it , maybe they felt it was most convenient to put it there, maybe they didn’t want or thought they wouldn’t need a shopping cart or basket etc. There’s no reason they can’t claim they still intended to pay for it unless they left or are attempting to leave the store.

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